Why is it necessary to maintain certain provisions for the state of danger?

The Government’s epidemiological measures are deliberately misinterpreted by some foreign-funded NGOs.

On 16 June 2020, the proposal for the initiative of terminating the state of danger, submitted by the Government and requiring a two-third majority of the MPs, was accepted by 192 votes in the Hungarian National Assembly, calling the Government to terminate the state of danger. After its entry into force, the Government will decide on terminating the state of danger, and Act XII of 2020 on the Containment of Coronavirus shall expire after the date is known. The original article was published on the page of Alaptörvény Blog on 17 June 2020. 

At the end of March, with the legislation on defense, the Parliament extended the state of danger declared by the Government on 11 March 2020, allowing the Government to make special provisions for addressing the pandemic in the absence of the parliamentary session. (Note: As opposed to some manipulative information also included in foreign news, the National Assembly was in session during the pandemic and performed its duties.) The state of danger is expected to terminate on 20 June. At the same time, the Parliament passed the law on the transitional rules and the state of epidemiological preparedness related to the termination of the state of danger. Based on this, on the proposal of the national chief medical officer, on the basis of the proposal of the minister, the Hungarian Government may order a state of health crisis, which qualifies as epidemiological preparedness. A state of crisis can only be ordered if there is an international epidemiological emergency.

The bill to initiate the termination of the state of danger has previously been challenged in a joint statement by the Helsinki-based Helsinki Committee, Amnesty International Hungary and the Hungarian Civil Liberties Union (HCLU) - foreign-funded organizations - calling it an “optical illusion”. According to them, the adoption of the bills mentioned will provide emergency governance for the Government for an indefinite time. They claimed this despite the fact that, with the current constitutional safeguards (the so-called checks and balances), it would not have been possible. The possible arbitrariness of the majority legislature is hampered by the Fundamental Law of Hungary, the cardinal acts and the Constitutional Court as an actual institution, or body, which has never been part of the judicial hierarchy.

The Hungarian Helsinki Committee and the above-mentioned human rights organizations object that the legislature changes the current legal framework for the state of danger defined in the Disaster Management Act and the health situation defined in the Health Care Act. At the same time, it is argued that not all amendments reflect the idea of transition. All this, in turn, shows that they are – probably consciously – misinterpreting the intention of the legislature. The legislative step is related to the fact that the government still considers it necessary to uphold several provisions made during the pandemic, and the introduction of some transitional measures in view of the current international situation and the necessary preparedness. The organization also prepared explanatory notes in English for each bill, in which it supposedly professionally details (and assesses) the new legal framework related to the state of health danger and, in this context, the international epidemiological emergency as its underlying cause.

Human rights organizations criticizing the adopted epidemiological regulations are not aware of the content and logic of the legal changes or try to mislead domestic and international public opinion.

The “experts” complain that if “these measures, pre-defined by Parliament, are not sufficient, the Government may take any other action” in the event of a state of health danger. It is worth clarifying: This is about regulating situations where the citizens’ life, physical integrity, health or the operation of health care providers is seriously endangered or damaged by an unexpected event. When a disproportion between health care needs and locally available capacity may occur; when state health administration, health care providers and other state and local government agencies can only perform their duties effectively with the help of additional necessary government measures, etc. This is what the legal provision for effective crisis management is about.

However, there are also basic legal-professional (deeper legal theory) problems with the position of foreign-funded NGOs. They are not aware of the basic professional aspects of the general applicability of laws, decrees and legislation, including the fact that a law has a different purpose, a different function than a government decree. In legal literature, legal applicability means that individual norms are produced from general norms, while in the case of individual norms (e.g. a decree on a specific case, problem), enforceability may be the most important aspect. The purpose of the laws is to provide a framework, and in the event of a state of danger, the professional details must be provided, if necessary, by going downwards from the general, higher-ranking law, and the extra measures stipulated by law must be taken and further important legislative decisions must be made.

For example, when experts from the Hungarian Helsinki Committee compare the scope of the decrees, they should take into account the following, as a basic principle: The decrees for the transitional period and the duration of the state of danger will not remain in force beyond what is legally justified. The repeal, derogation means the termination of the factual period, when, for example, the legislature (the Government, the National Assembly) simply repeals the legislation. As it was previously unreasonable to mention the Authorization Act, it is necessary to point out that, in the Hungarian constitutional system, the Government and the National Assembly have the right (authorization) to make laws. It is entitled to this at any time: when exercising power in normal and special order.

In light of the above, the criterion in the above-mentioned material of the human rights organization criticizing that “the decision on the termination of the current state of danger is at the discretion of the Government” is also difficult to justify. The exercise of discretion by a government in any state of danger means nothing more than the fact that all related, responsible decisions must be based on fact-finding and its legal assessment.

The laws now passed provide the legal framework for the legislature to make effective, appropriate decisions in the event of a state of health danger. Of course, even in such extraordinary situations, the legislature should try to clearly define the subject matter of the law in precise terms, or describe the facts providing a single, correct interpretation, which must be addressed in state-of-danger situations by those applying the law (authorities, Hungarian citizens).

In view of the above, the latest responsible parliamentary decisions related to the state of danger, taken this week, are fully in line with the strict norms of the constitutional rule of law guaranteeing legal certainty.


Author: Zoltán Lomnici Jr., lawyer of constitutional law, legal expert of Századvég